Canada: Trump's NAFTA Pledge Threatens U.S. Expats In Canada

Donald Trump infamously called the North American Free Trade
Agreement (NAFTA) "the single worst trade deal ever approved
by [the United States]"1 and vowed to withdraw from the
deal once elected. This policy was such a core plank of his
platform that as soon as it become abundantly clear that Trump
would win the U.S. election, the value of Mexican Peso relative to
U.S. dollar dropped precipitously under the expectation that the
U.S. would likely withdraw from NAFTA.2

Since then, much has been written about the potential economic
fallout caused by Trumps pledge. However, little has been written
about what might happen to Americans who are working in Canada.

The NAFTA Work Permit

Like most trade deals, NAFTA has a labour mobility provision
which allows for the free flow of labour across borders. While this
is nowhere near as generous as the European labour mobility
rules,3 it has massively simplified the
ability for Americans to work in Canada.

The NAFTA Work Permit has allowed qualifying professionals
(accountants, lawyers, doctors, teachers, nurses, and scientists)
to easily work in Canada without going through Canada's usually
cumbersome Foreign Worker Program (FWP). Normally, under the FWP,
an employer must do a Labour Market Impact Assessment (LMIA) and
advertise for several months before they may extend a job offer to
a non-Canadian. Under NAFTA, an employer can extend a job offer to
an American and that American would then qualify for a NAFTA Work
Permit. This NAFTA Work Permit gives Americans nearly the same
level of access to the labour market as your typical Canadian.

If the U.S. Pulls Out of NAFTA, What Happens?

It is not clear what would happen to American workers who are in
Canada on NAFTA Work Permit if the U.S. were to pull out of
NAFTA.

One possibility is that the Canadian government automatically
transfers everyone to a Work Permit under the old Free Trade
Agreement (FTA) between Canada and the United States. FTA contains
labour mobility provisions which, on the whole, are virtually
identical to NAFTA, but this is not a guarantee. For one, although
the FTA was never repealed, it was only suspended, it's not
clear what steps will have to be taken to revive it. Would it
automatically come back into force once the U.S. pulls out of
NAFTA, or would it require additional steps from the U.S. and
Canadian governments?

It is also not clear whether or not President Trump has any
interest in maintaining the FTA. There are plenty of Americans who
blame Canada (as much as Mexico) for unfair trade practices and the
decline of manufacturing. It is not inconceivable that under a
Trump Presidency the U.S. would pull out of NAFTA and the FTA, thus
closing one possible avenue of relief for Americans in Canada on a
NAFTA Work Permit.

Considering past practices, we might not know what President
Trump's plans are until his 3 a.m. tweet announcing a
withdrawal from NAFTA.

Could the Canadian Government Provide Relief?

The Government of Canada has not provided any indication as to
what it would do in the event that the U.S. pulls out of NAFTA.
Beyond stating that they would be open to negotiations, the
Canadian government has given no indication about how it might
react.

Parliament certainly has the power to enact a special
transitional visa for Americans already in Canada. But anything
permanent raises constitutional issues. Without a trade deal, it
would be incredibly difficult for the Canadian government to
legally enact a preferential visa for just American citizens as it
is unconstitutional to give preferential treatment based on
nationality.

Thus, from our initial assessment, the hands of the Canadian
government could be effectively tied from providing relief.

What Should Americans on a NAFTA Work Permit Do?

The worst decision a NAFTA Work Permit holder can make is to
simply wait and see what might happen. It's better to take
steps under the existing immigration laws and regulations while you
have options.

The best option is to apply under the Express Entry Program (EE
Program) for Permanent Residency. To qualify, a foreign national
must reach a minimum points threshold, the threshold varies based
on the applicant pool with the most recent threshold requiring at
least 459 points.4

Under the revised rules and regulations of the EE Program,
issued in November of 2015, American citizens on a NAFTA Work
Permit can receive an additional 50 or 200 points if they are
applying for Permanent Residency under the EE Program. These bonus
points give Americans an edge when applying for Permanent Residency
under the EE Program.

Once a foreign national is granted Permanent Residency, it can
be withdrawn only if the foreign national commits certain crimes or
is absent from Canada for an extended period of time. Therefore, if
the U.S. pulls out of NAFTA, an American with Permanent Residency
is no longer at risk of losing his or her legal status in
Canada.

Rather than waiting for the 3 a.m. tweet, Americans on a NAFTA
Work Permit should quickly apply under the EE Program and secure
their place in Canada.

[3] The
free movement of workers, is one of the four fundamental economic
freedoms of the European Union. It allows a person to seek
employment or to settle anywhere in any European Union without a
visa. 45 TFEU
http://www.europarl.europa.eu/atyourservice/en/displayFtu.html?ftuId=FTU_3.1.3.html

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